Petition for Writ of Certiorari — Willems Calixte, Jr., Petitioner v. United States

APPENDIX A

USCA11 Case: 21-13578

Document: 94-1

Date Filed: 06/18/2024

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No. 21-13578

Non-Argument Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLEMS CALIXTE, JR.

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:20-cr-60153-WPD-l

USCA11 Case: 21-13578

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Opinion of the Court

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21-13578

Before Jordan, Newsom, and Lagoa, Circuit Judges.

PER CURIAM:

Willems Calixte, Jr. appeals his conviction and sentence for

possession of a firearm and ammunition as a convicted felon, in vi­

olation of 18 U.S.C. § 922(g). On appeal, Calixte challenges the ap­

plicability of the Armed Career Criminal Act, 18 U.S.C. § 924(e)

("ACCA”) and the constitutionality of 18 U.S.C. § 922(g). After

careful review of the parties' arguments, we affirm.

I

We review de novo whether a prior state conviction quali­

fies as a "violent felony” under the ACCA. See United States v. How­

ard, 742 F.3d 1334, 1341 (11th Cir. 2014). However, “we review

unpreserved sentencing objections only for plain error. United

States v. Corbett, 921 F.3d 1032, 1037 (11th Cir. 2019).

The ACCA requires that any person who violates 18 U.S.C.

§ 922(g) serve a mandatory minimum sentence of 15 years when

he has three prior convictions for violent felonies or serious drug

offenses committed on separate occasions. 18 U.S.C. § 924(e)(1).

In Borden v. United States, the Supreme Court concluded that a crim­

inal offense with a mens rea of recklessness cannot qualify as a vio­

lent felony” under the ACCA's elements clause to enhance a

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defendant's sentence. 593 U.S. 420, 423-24, 429 (2021) (plurality

opinion); id. at 446 (Thomas, J., concurring).1

In Somers v. United States, we relied on the Florida Supreme

Court's determination that state-law aggravated assault requires a

mens rea of at least knowing conduct and could not be committed

recklessly to hold that Florida aggravated assault “categorically

qualifies" as a violent felony under the ACCA’s elements clause,

even after Borden. 66 F.4th 890, 896 (11th Cir. 2023). And in United

States v. Fritts, we held that a conviction under Florida's armed-robbery statute “categorically qualifies” as a violent felony under the

ACC A based on the Florida Supreme Court's interpretation that a

violent act was required. 841 F.3d 937, 942-43 (11th Cir. 2016).

Under the prior precedent rule, “a prior panel’s holding is

binding on all subsequent panels unless and until it is overruled or

undermined to the point of abrogation by the Supreme Court or

this court sitting en banc." United States v. Archer, 531 F.3d 1347,

1352 (11th Cir. 2008).

Here, as an initial matter, because Calixte failed to challenge

the applicability of the ACCA before the district court, we review

his current arguments only for plain error. Corbett, 921 F.3d at

1037. We find no error, plain or otherwise, because Calixte's

1 When the Supreme Court decides a case and “no single rationale explaining

the result enjoys the assent of five Justices, the holding of the Court may be

viewed as that position taken by those Members who concurred in the judg­

ments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193

(1977) (quotation marks omitted).

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Opinion of the Court

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arguments that his aggravated assault and armed robbery convic­

tions are not violent felonies under the ACCA are foreclosed by our

binding precedent. Somers, 66 F.4th at 890, 896; Fritts, 841 F.3d at

942-43. To the extent that Calixte contends that our precedent was

overturned by Borden, we disagree; that decision did not overturn

or undermine our previous holdings to the point of abrogation. See

Somers, 66 F.4th at 895-96; Archer, 531 F.3d at 1352.2

Accordingly, we affirm in this respect.

II

Under federal law, a person who has been convicted of a

crime punishable by more than one year’s imprisonment may not

possess a firearm, or ammunition that has moved through interstate

or foreign commerce. 18 U.S.C. § 922(g)(1). In United States v.

Rozier, we held that § 922(g)(l)’s prohibition on possession of fire­

arms by felons was a "constitutional avenue to restrict the Second

Amendment right of certain classes of people.” 598 F.3d 768, 771

(11th Cir. 2010). We have since held that Rozier was not abrogated

by New York State Rifle dr Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022).

United States v. Dubois, 94 F.4th 1284, 1293 (11th Cir. 2024). There­

fore, Calixte’s argument that § 922(g)(1) violates the Second

Amendment in light of Bruen is foreclosed by our binding prece­

dent.

2 Because at least three of Calixte’s prior felonies were qualifying violent felo­

nies under our binding precedent, we decline to examine whether a Florida

armed-kidnapping conviction qualifies as a violent felony.

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Opinion of the Court

Accordingly, we affirm in this respect as well.

AFFIRMED.

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APPENDIX B

USCA11 Case: 21-13578

Document: 104-2

Date Filed: 09/16/2024

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No. 21-13578

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLEMS CALIXTEJR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:20-cr-60153-WPD-l

ON PETITION(S) FOR REHEARING AND PETITION(S) FOR

REHEARING EN BANC

USCA11 Case: 21-13578

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Document: 104-2

Date Filed: 09/16/2024

Order of the Court

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21-13578

Before Jordan, Newsom, and LAGOA, Circuit Judges.

PER CURIAM:

The Petition for Rehearing En Banc is DENIED, no judge in

regular active service on the Court having requested that the Court

be polled on rehearing en banc. FRAP 35. The Petition for Panel

Rehearing also is DENIED. FRAP 40.